Up Front: It's Complicated
114 Responses
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Craig Ranapia, in reply to
The one thing we could agree on, sort of, was that American media often uses the age of consent - always 18 on TV, despite its variance between states - in a creepy way, creating a fantasy of illegal sex.
And, frankly, as far as Glee is concerned I'd put that a fair way down the list of sex and sexuality-related issues Ryan Murphy should be dealing with in therapy rather than on television.
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A particular NZ child-rapist claimed his 8-y.o. victims were consenting. He didn't "force" them.
While I agree that underage sex is not necessarily exploitative, in some cases it sure is.
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Islander, in reply to
I suggest - diffidentally- that relationships comprise rather more than sexual relationships...and you learn to handle those as you grow up, by living through dealing with illness/ death/disaster/change of all kinds- including the benign!
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Emma Hart, in reply to
While I agree that underage sex is not necessarily exploitative, in some cases it sure is.
Absolutely. And in some cases, over-age sex is exploitative. Likewise, as Islander points out, non-sexual relationships can be just as strong as sexual ones - including as strong a bad influence. But in neither case can you have the exploiter arrested. Kaitlyn's girlfriend's parents don't appear to have objected to her as a friend for their daughter, only as a lover. That's one of the things that makes me wonder what, exactly, they thought was going to happen.
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Hopefully this will eventually be resolved in courts where sense will prevail as sentences are laid down. It's impossible to adequately legislate to suit all, and sadly most laws target the under performers at the expense of the competent - recreational drugs need only be illegal for some, some drivers are safer while using a mobile phone than others who aren't, etc
But who is really creating the damage here? How are the media treating this case? Responsibly? Journalists need to take responsibility for their actions before some govt does.
Where laws cannot always work ethics and morals take over. This applies to both those who would exploit under 16s for sex and journos intent on sales/ratings.
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Lucy Stewart, in reply to
Whereas I agree with her, because the girl did commit rape. And that should not be trivialised.
See, I think that is a perfectly valid argument (especially considering attitudes about men always being “up for it”, etc.) But that was diametrically opposite to the argument they were making, and IIRC they explicitly rejected the idea that exploitation could have gone in that direction.
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Lucy Stewart, in reply to
And if you rape an under-16, that’s a different (more serious) crime, and presumably if the young person consented to sex, that would be a defence though haven’t checked.
Which brings up another complication: "statutory rape" (and I agree with Graham, that's a terrible descriptor) seems to be quite often used in cases of rape where proving non-consent faces all the usual difficulties, but proving the rapist knew the victim was under the age of consent is possible. (I have no citation, here, it's just an impression from reading media reports over the years.) That muddies the water even further.
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Moz, in reply to
But that was diametrically opposite to the argument they were making
I know. I just thought someone should mention that "pressuring someone into sex" is actually rape.
One of the other oddities is that in NZ it's quite legal to have sex at 16, but not legal to produce "sexually explicit images" of someone under 18. But we've discussed that before.
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Homophobia is probably a factor
Why?
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Emma Hart, in reply to
But who is really creating the damage here? How are the media treating this case?
The media hype has largely been generated and actively courted by Kaitlyn's parents, which is another thing that makes me make my 'conflicted' face about this case. But before the circus hit the road a couple of weeks ago, Kaitlyn had already been thrown off the school basketball team and then expelled from her school. The plea bargain she was offered - their attempt at sense prevailing - was two counts of child abuse, which is still a felony. For a start, given she lives in Florida, that conviction would have meant Kaitlyn never getting to vote. Even without a sex offender registration, the child abuse convictions wouldn't exactly enhance her chances of pursuing a career as a paediatric nurse.
I am concerned about the damage the publicity is doing to the younger girl. But the potential damage to Kaitlyn from the conviction is much greater than that from the publicity.
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The problem with age of consent laws is they try to set a threshold for maturity in the law. And worse the act the law measures is a physical one but maturity is so much more than the simply ability to have sex.
Some of the arguments treat sex as a simple physical act, but anyone who has actually had sex knows full well it is much more than simply physical. It is the emotional and social impacts of sex that take time to learn and understand. I'd argue that most folks don't get to grips with it until middle age. So any simple threshold law must fail.
Where the law does have value is that it allows society to step in where harm might be being done. Near as I can tell that's how the NZ police use it. In this case the law gives society the opportunity to actually ask the question is the relationship consensual and balanced. If it is then fine, everybody move along, nothing to see here.
And as for drawing conclusions about this case - I'm leary of drawing conclusions about relationships where I know the people really well - in this case there is so much we don't know about the girls, about the parents, about the schoolfriends. We can't judge fairly without knowledge.
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Keir Leslie, in reply to
Yes: tactically, a charge of sexual conduct with young person under 16 is way way easier to prove. You don't even have to prove the defendant knew the victim was under 16: the defendant has to show they took reasonable steps + had reasonable grounds + consent.
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Moz, in reply to
The problem with age of consent laws is they try to set a threshold for maturity in the law
But we do that with all sorts of things - contracts, operating dangerous machinery, medical attention, (recreational) drug use, military service, you name it. Pragmatism requires a sharp line that's easily distinguishable.
It might be handy to instead use a "mature adult" card. The test would presumably be similar to the dangerous machinery system we have now - a written test, an oral test, possibly a character or criminal record check, a bunch of dealing with bureaucrazy. If you pass you get the card. Then we make a bunch of stuff dependent on having the card - drivers license, firearms license (it's kinda double testing since the MA card is based on the systems those use already, but the subject matter will be different), possibly voting, having sex, signing contracts, buying drugs, seeing naked people at the movies, whatever.
If we did that I'd be really happy. Especially if we did it without the stupid threshold that I expect would be applied - if the testing has any merit at all it should be available to anyone. No restrictions at all. You're five years old and you want to have a go? Cough the cash and get in line.
The real amusement would come when we had to set up a system for removing cards from people who clearly failed to act like mature adults :)
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Bart Janssen, in reply to
a “mature adult” card
How about a shiny badge instead with LEDs, that could be used as a ninja throwing star, with a secret tracking device ... oh
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BenWilson, in reply to
And worse the act the law measures is a physical one but maturity is so much more than the simply ability to have sex.
Yes. Also, conversely, one's right to have sex might have little to do with maturity. The idea that an socially immature but physically mature 20 year old could be in any way be blocked from having consential sex seems to me to be a profound violation of human rights.
It might be handy to instead use a “mature adult” card
The very idea sticks in my craw. It's like taking the idea of a free and progressive society, and inverting it. Patronizing paternalism is hardly a new idea. There are still plenty of people today who don't get to make decisions about even who they have to be married to for the rest of their lives, on the reasoning that they are too young to make the choices themselves. Is that the society we're after?
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Moz, in reply to
It might be handy to instead use a “mature adult” card
The very idea sticks in my craw. It's like taking the idea of a free and progressive society, and inverting it. Patronizing paternalism is hardly a new idea.
I can see the attraction of that point of view. But then I start thinking about "a nuclear weapon in every home" and become aggressively paternalistic again. My version of the balance between freedom to do whatever I like, and freedom from other people doing likewise, is on the side of definitely requiring permits to operate dangerous machinery, some kind of limit on who can consent to sex and contracts, bans on the sale of humans and so on.
I suspect that where you and I really differ is more likely on whether you want a crazy hodge-podge of rule and restrictions that vary depending on what exactly is under discussion, or a single "now you're an adult" line. But I could be wrong.
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BenWilson, in reply to
I suspect that where you and I really differ is more likely on whether you want a crazy hodge-podge of rule and restrictions that vary depending on what exactly is under discussion, or a single “now you’re an adult” line. But I could be wrong.
I'm not sure, I don't know exactly what you would be suggesting for sure anyway, and it could well be something quite reasonable. But it does seem to me that we've finally reached a point in history that a whole lot of crazy arse rules about what people are allowed to do with their genitalia have finally been removed, that to start introducing new ones is regressive. The idea of a card you have to earn to be even allowed to have sex strikes me as something that could so easily be abused that the very idea of it is creepy. I really don't like the idea of some "reasonable man" or some shrink getting to decide if I can use my dick for what it pretty much evolved to do.
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Caveat the above with “Within the law, of course.” Which is what we’re discussing, so I can’t say it’s an obvious thing, about where the line should be drawn. As Emma started out by saying, it’s complicated. Everyone’s got their squick, and it gets squicky fast when we’re talking about children. But you’re suggesting basically widening the definition of “minors” to mean people who could be any age, basing the decision on passing some kind of testing against the norms of society, to prejudge your sexworthiness.
I can see the point of that when you’re talking about people who fall well outside of the norm. The intellectually disabled, for instance, or insane people, could possibly be considered unfit to clearly consent. Prisoners are restricted in all things, sex is just one of them. But I’m uncomfortable about denying even these people, the restrictions should mostly be on the people who want to have sex with them, not on them being able to have sex with anyone at all.
So it’s still a crazy hodge-podge of rules, like all practical matters involving humans tend to be. In practice, there already IS an “adult card”, which is police and court (and jury) discretion, and indeed parental discretion, and institutional ethics. It’s all humans enforcing this stuff now, just as it would be after bringing in the “license to shag” card.
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Moz, in reply to
The intellectually disabled, for instance, or insane people, could possibly be considered unfit to clearly consent.
I think that's actually one of the stronger arguments against a single line. A lot of physically adult people with intellectual disabilities like sex and consent to it. Ditto people institutionalised with mental illnesses. So it might be appropriate to allow some of them to have sex, but only under what amounts to adult supervision (which, FWIW, is the current situation, modulo guardian squicking and effectiveness of supervision). Those same people should not be allowed firearms licenses, let alone the sort of untrammelled access to weaponry that your earlier comment implies.
But some of what we have is just bizarre and can only be explained by history. You can get a gun licence at 16 but have to be 17 for a car license, and 18 to buy alcohol? You can adopt at any age (birth mother decides) but you can't marry until you're 16 or sign a contract until you're 18? Who decides these things, and what sort of drugs do they have to take first?
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I wish people would stop using the term “age of consent” here. In NZ, the “age of consent” is, if anything, 12 – that’s the age below which it is impossible to use a partner’s consent in a defence. The rules around sex with under-16 year olds are not framed in terms of a 15-year old’s incapacity to give consent: if a 15 y-o couldn’t consent, then all case of sex with a 15 y-o would simply be rape. (As Graeme pointed out above.) Mental capacity (as such) is a bit of a red herring.
From a positivist point of view, consent doesn’t appear to be the issue here. On the other hand, capacity for consent certainly is for an s 138 (sexual exploitation of person with significant impairment) offence.
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I wish people would stop using the term “age of consent” here. In NZ, the “age of consent” is, if anything, 12 – that’s the age below which it is impossible to use a partner’s consent in a defence.
What's a better term? Presumably you're not saying adults can have as much sex as they like with consenting 13 year olds, right? I understood that to be illegal (even if an "I didn't know" defense stands up - the first time), although I fully agree that equating it with rape is just silly.
It might help discussion if someone legally informed could actually jot down what the actual law on sex with minors is in this country. "Age of consent" is still a term that seems to apply in the US, though, with their statutory rape thing. We're not just talking about NZ in this thread, indeed, the original post is about an American situation.
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Nick D'Angelo, in reply to
I thought the law was “half your age plus 7”? That’s what my classmates at high school said.
I thought that was the age limit for Cougars ‘prey’?
(It doesn’t apply to men because regardless of her age, you’re still A Dirty Old Man) -
Keir Leslie, in reply to
The Crimes Act is reasonably readable on this front.
To be quite rough, there’s a group of crimes here. One, sexual violation, is what we’d commonly call rape. It’s defined, basically, as having sex with someone who doesn’t freely, actively and informedly consent, and it carries a 20 year maximum, and a presumption of imprisonment. Then there’s the s132 (sexual conduct with child under 12) offence, which makes it illegal, under any circumstances, and no matter what you thought you were doing, to have sex with anyone under 12. That’s a 14 year maximum. There’s also the s134 (sex with an under-16 year old) offence, which makes it illegal to have sex with someone under 16 unless you meet the s134A criteria.
If you look at s134A, you see that the law has a concept of “consent” for those under 16. It just doesn’t think that’s hugely important. Now, you could look at it as an evidentiary convention. But I don’t think that’s right. (Because if an under-16 can’t consent, that’s just sexual violation.) I think there’s something else going on, and “age of consent” terminology is confusing, because it supposes the law is trying to discriminate based primarily on capacity to consent, which I don't think it is.
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Emma Hart, in reply to
Over sixteen is referred to, particularly when making international comparisons, as "the age of consent" because it's the age at which only consent matters.
If you look at s134A, you see that the law has a concept of “consent” for those under 16. It just doesn’t think that’s hugely important.
No, it doesn't think consent is relevant, unless you also thought they were over sixteen. To be a defence;
(a)before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and
(b)at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c)the young person consented.If you thought they were sixteen, because you had reasonable reason to, but they said no, that doesn't constitute a defence. If you have consent, but you know they're under-age, that's not a defence. If a person is under sixteen, their consent only counts if you thought they were over sixteen. If you knowingly have sex with someone under sixteen, their consent is irrelevant.
Slightly tangentially, by my reading of this, the consensual sex I had at fifteen with my seventeen year old boyfriend was a crime. We were both in fifth form, we were in the same circle of friends before we starting going out. He genuinely believed I was sixteen: I know this because when I told him I was fifteen he fell off his chair. But he'd taken no "reasonable steps" to find out how old I was. Ergo, my having consented would not have been a defence. If I had been sixteen, our mutual consent would have been all that mattered.
I agree the terminology is confusing. I don't see that we have anything better, though.
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BenWilson, in reply to
Thanks for that, Keir.
If you look at s134A, you see that the law has a concept of “consent” for those under 16. It just doesn’t think that’s hugely important.
"Age of consent" doesn't come into it, anyway. Consent itself does, and is clearly important as one of the three conditions of the only defense in section 134A. Indeed, that it is mentioned implies that consent IS possible in a "young person" which is a 12-15 year-old, presumably. If it's absent, there is no defense, and presumably two crimes (at least) have been committed, eg Sexual Conduct with Young Person under 16, and Sexual Violation. If they did consent, then it's not Sexual Violation (as I read it), even though it might be Sexual Conduct with Young Person under 16, if the other 2 conditions failed. ie The defendant knew or didn't try to find out that the person was under 16.
It's not clear (to me) that consent is not possible for under 12s. It's just illegal to have sexual conduct with them.
ETA: Snap Emma
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